Aquino

vs Fernandez The Civil Service > Discipine Facts: Judge Manuel Aquino of the MTC of Caba, La Union submitted to the Office of the Court Administrator his Report/Findings recommending that an appropriate disciplinary action be imposed upon Jocelyn Fernandez who holds the position of Stenographer I in his sala. According to Aquino, Fernandez failed to type the draft order in a case then pending in his court despite the instructions given by him. When asked to give a written explanation, Fernandez admitted her failure to accomplish said task with a promise not to commit the same offense, explaining that she had to prepare 18 copies of her daily time record and leave of absence. Fernandez did not file any prior leave of absence for November 4 to 6, 1998 as required by law. Previously, Fernandez was reprimanded by the Clerk of Court for her absence in October of 1993 and by Aquino himself for her absences in October of 1996. Aquino further complains that the stenographic notes of respondent were always submitted late and full of errors which caused her very low performance rating. The Report/Findings was referred to the then Acting Executive Judge of the RTC of Bauang, La Union for investigation, report and recommendation. Judge Rose Mary Molina-Alim of said RTC submitted to the Court Administrator her Report and Recommendation, with the following findings: Fernandez is guilty of simple neglect of duty in failing to type the drafted order; gross dishonesty in being absent without any application for leave; serious misconduct in being absent just to play mahjong. Considering Fernandez absences, although unauthorized for not filing the required prior leave of absence, were not habitual and frequent, that her failure to type the drafted order, was committed only once, her absence just to play mahjong, an isolated case, this investigating Judge finds Fernandez nevertheless administratively guilty of the above-mentioned infractions. It is recommended that Fernandez be meted out a penalty of suspension for 1 month without pay, with a stern warning that commission of similar conduct in the future shall be dealt with, more severely. The Court referred the Report and Recommendation to the Office of the Court Administrator for evaluation, report and recommendation. Deputy Court Administrator Jose Perez concurred in the report of the investigating judge. Issue: Whether or not the findings and recommendation were proper. Ruling: Not entirely. Fernandez had been reprimanded on 2 occasions. First, she was reprimanded by Clerk of Court Isabel Marquez on October 13, 1993 for playing mahjong on a day she absented herself and for submitting her work late and full of errors. Second, Fernandez was reprimanded on November 6, 1996 by Judge Aquino for her absences on October 8 to 11, 1996 and October 18, 1996. She failed to present a medical certificate attesting to her alleged sore eyes on October 8 to 11 and also failed to present a certificate of appearance from the court where she was allegedly required to appear on October 18, 1996. Circular No. 30-91 which quotes the Resolution of the Court En Banc dated February 26, 1991, provides that: (1) Disciplinary matters involving light offenses as defined under the Civil Service Law (Administrative Code of 1987, and the Code of Conduct and Ethical Standards for Public Officials and Employees (Rep. Act. 6713) where the penalty is reprimand, suspension for not more than thirty days, or a fine not exceeding thirty days salary, and as classified in Civil Service Resolution No. 30, Series of 1989, shall be acted upon by the appropriate supervisory official of the lower court concerned. (2) The appropriate supervisory officials are the Presiding Justices/Presiding Judge of the lower collegiate courts and the Executive Judges of the trial courts with respect to the personnel of their respective courts, except those directly under the individual Justices and Judges, in which case, the latter shall be their appropriate supervisory officials. (Emphasis supplied). Section A, Chapter VII of the 1991 Manual for Clerks of Court, which was in effect when said reprimands on respondent were meted out, provides: 5. xxx The Clerk of Court initiates investigations of erring personnel and recommends appropriate action to the Executive Judge. (Emphasis supplied). Thus, while it is clear that presiding judges have the authority to act upon disciplinary matters involving light offenses, clerks of court only have the duty to initiate investigations of erring personnel and to recommend appropriate action to the Executive Judge. For this reason, the reprimand meted out by Marquez is improper for lack of authority. This notwithstanding, we find that there is no more need to punish Fernandez for her misconduct committed 10 years ago, in

 the absence of a showing that she has committed similar offenses after she was given a reprimand by the Clerk of Court, albeit erroneously, for said act. As to the reprimand imposed by Aquino on respondent for her absences in 1996, we find this to be in order only with respect to the October 18, 1996 incident. As to her sick leave of absence on October 8 and 11, 1996 because of sore eyes, a medical certificate is not necessary in case of sick leave of absence for less than 5 succeeding days. At any rate, considering that Fernandez had already been reprimanded by Aquino, it would not be appropriate that she be penalized anew for the same acts. Hence, there are only 2 charges against Fernandez left for resolution of the Court: first, respondents failure to type a draft order she was tasked Aquino to accomplish on November 4, 1998 and second, her alleged unauthorized absences from November 4 to 6, 1998. As correctly observed by the investigating judge and the Court Administrator, Fernandez committed a simple neglect of duty in failing to type a draft order which Aquino asked her to finish. Simple neglect of duty signifies a disregard of a duty resulting from carelessness or indifference. It is considered a less grave offense under Sec. 23 of the Omnibus Civil Service Rules and Regulations Implementing Book V of Executive Order No. 292 for which a penalty of suspension for 1 month and st nd 1 day to 6 months shall be imposed for the 1 offense and dismissal for the 2 offense. Considering her admission and plea for compassion with a promise not to commit the same acts in the future, a lighter penalty than suspension for 1 month and 1 day on respondent would suffice in this case. Aquino in his complaint, avers: Per verification from the Courts Clerk of Court, Ms. Fernandez did not file any prior leave of absence for November 4 to 6, 1998 as required by law. (Emphasis supplied). The complaint does not indicate whether the absence of Fernandez on said dates was meant to be a vacation or due to illness. In either case, the governing rules are found in Rule XVI of the Omnibus Civil Service Rules and Regulations, to wit: Sec. 49. Period within which to act on leave application. - Whenever the application for leave of absence, including terminal leave, is not acted upon by the head of agency or his duly authorized representative within five (5) working days after receipt thereof, the application for leave of absence shall be deemed approved. Sec. 50. Effect of unauthorized leave. - An official/employee who is absent without approved leave shall not be entitled to receive his salary corresponding to the period of his unauthorized leave of absence. It is understood, however, that his absence shall no longer be deducted from his accumulated leave credits, if there is any. (Emphasis supplied). Sec. 51. Application for vacation leave. - All applications for vacation leave of absence for one (1) full day or more shall be submitted on the prescribed form for action by the proper head of agency five (5) days in advance, whenever possible, of the effective date of such leave. (Emphasis supplied). Sec. 52. Approval of vacation leave. - Leave of absence for any reason other than illness of an official or employee or of any member of his immediate family must be contigent upon the needs of the service. Hence the grant of vacation leave shall be at the discretion of the head of department/agency. Sec. 53. Application for sick leave. - All application for sick leave of absence for one full day or more shall be made on the prescribed form and shall be filed immediately upon employees return from such leave. Notice of absence, however should be sent to the immediate supervisor and/or to the agency head. Application for sick leave in excess of five (5) successive days shall be accompanied by a proper medical certificate. Sick leave may be applied for in advance in cases where the official or employee will undergo medical examination or operation or advised to rest in view of ill health duly supported by a medical certificate. An ordinary application for sick leave already taken not exceeding five days, the head of department or agency concerned may duly determine whether or not granting of sick leave is proper under the circumstances. In case of doubt, a medical certificate may be required. Sec. 54. Approval of sick leave. - Sick leave shall be granted only on account of sickness or disability on the part of the employee concerned or of any member of his immediate family.

 Based on Section 51, whether or not an application for vacation leave is filed 5 days in advance, the head of the agency, in this case Aquino, has the discretion to approve or disapprove the application. The reason for the requirement that employees applying for vacation leave, whenever possible, must submit in advance their applications for vacation leave, is to enable heads of offices to make the necessary adjustments in the work assignments among the staff so that work may not be hampered or paralyzed. However, it is clear from the rules that mere failure to file a leave of absence in advance does not ipso facto render an employee administratively liable. In case the application for vacation leave of absence is filed after the employee reports back to work but disapproved by the head of the agency, then, under Section 50, the employee shall not be entitled to receive his salary corresponding to the period of his unauthorized leave of absence. The unauthorized leave of absence becomes punishable only if the absence is frequent or habitual under Section 23 (q), Rule XIV of the Omnibus Civil Service Rules and Regulations or detrimental to the service under Section 23 (r) or the official or employee falsified his daily time record under Section 23 (a) or (f) of the same Omnibus Civil Service Rules. In this case, Aquino merely alleged that Fernandez did not file any prior leave of absence. This, we find insufficient to discipline Fernandez. There is no claim or evidence showing that Fernandez did not file her leave of absence after reporting for work, or that Aquino disapproved her leave of absence, or that her absence was inimical to the interest of public service, or that she falsified her daily time record to cover up her absence. Moreover, the absences of Fernandez occurred 2 years apart which can hardly be categorized as frequent or habitual. Sections 53 and 54 provide for the action to be taken by the agency head in case of application for sick leave. In the present case, it does not appear in the complaint that the absence of Fernandez was due to illness. In sum, we find Fernandez guilty for simple neglect of duty only for failing to type a draft order. While said offense carries a st penalty of 1 month and 1 day to 6 months suspension for the 1 offense, we take note of her candid admission of her faults and her sincere promise to improve her ways. She explains that she was remiss in her duties because of personal problems that clouded her mind. These circumstances mitigate respondents liability.